It's Never too Late to Repent, John and Johnny

 Posted on September 02, 2009 in Uncategorized

Cameron Todd Willingham died at age 36. Convicted of capital murder in Corsicana, Texas in 1991 for the fire death of his three daughters, Willingham was executed in 2004.

The evidence against Willingham? A jailhouse snitch, Johnny Webb, who

alleged that Willingham had confessed to him that he took "some kind of lighter fluid, squirting [it] around the walls and the floor, and set a fire."

According to the Court of Criminal Appeals opinion on direct appeal,

Johnny Webb, a State's witness, testified that appellant confessed to him that he committed the offense; that appellant explained in detail how he poured lighter fluid throughout the house, purposely burned one of the children, set the house on fire, fled, and refused to go back into the house to rescue the children.

Another inmate would have testified for the defense that he heard Webb telling another inmate that "he was hoping to get out-get time cut or something was supposed to happen with his lawyer in a couple of months," but Willingham's lawyers didn't lay the proper predicate to admit this evidence. The prosecutor, John Jackson, concedes that Webb, who suffered from PTSD and "mental impairment" was "an unreliable kind of guy" but claims to have seen no motive for him to lie. Yet after the trial he took the unusual step of asking the Board of Pardons and Paroles to parole Webb. He's lying to himself if he doesn't see the possibility of a prosecutor's favor as motive for a jailhouse snitch to lie. When Webb was told that an innocent man had been killed, he said, "Nothing can save me now;" David Grann, in his New Yorker article, relates:

When I recently asked Webb, who was released from prison two years ago, about the turnabout and why Willingham would have confessed to a virtual stranger, he said that he knew only what "the dude told me." After I pressed him, he said, "It's very possible I misunderstood what he said." Since the trial, Webb has been given an additional diagnosis, bipolar disorder. "Being locked up in that little cell makes you kind of crazy," he said. "My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that." He paused, then said, "The statute of limitations has run out on perjury, hasn't it?"

As well as jailhouse snitch testimony (a major cause of 45% of wrongful convictions in capital cases), Jackson used the testimony of assistant fire chief Douglas Fogg and deputy fire marshal Manuel Vasquez, which testimony has been (as you know because you read Paul Kennedy and Scott Greenfield Doug Berman and Brian Jeff Gamso and Preaching to the Choir and Shawn Matlock and Grits and The Agitator and Gideon and Capital Defense Weekly) thoroughly discredited by the Innocence Project's Arson Review Committee.

Still, Prosecutor Jackson rationalizes his continued belief that he didn't kill an innocent man. The gist of his position seems to be that the end (killing a guy who murdered his kids) justified the means (false snitch and forensic testimony). Among other rationales (refusal to take a polygraph, Mr. Willingham's abuse of his wife and of animals):

7. Any escape or rescue route from the burning house was blocked by a refrigerator which had been pushed against the back door, requring any person attempting escape to run through the conflagration at the front of the house.

I didn't see the trial, but the Court of Criminal Appeals opinion on direct appeal doesn't mention many of Jackson's purported facts as culpability evidence against Willingham. Jackson may have had truthful and admissible evidence of some of the claims he makes. Or he might be making stuff up-John Jackson presented false forensic testimony at trial to kill a guy; there's nothing to stop him from lying to the press.

And then there is this:

Jimmie Hensley, the police detective, and Douglas Fogg, the assistant fire chief, both of whom investigated the fire, told me recently that they had never believed that the fridge was part of the arson plot. "It didn't have nothing to do with the fire," Fogg said.

I don't know if they subscribe to the legal doctrine of falsus in unum, falsus in omnibus up there in Corsicana, but if you've got a righteous killing, why misrepresent anything in defense of it?

Still, at least publicly, John Jackson has no doubt. Which, as S observes at Preaching to the Choir, may be

evidence enough that we should abandon the death penalty. If we really can't live with the consequences of getting it wrong, we shouldn't be taking the risk in the first place.

Admirers of any institution, when faced with irrefutable evidence of an institutional fuckup, will, rather than accepting that the institution is fallible, look for some reason that the fuckup was harmless (that's Bennett's Universal Harmless Error Rule). Jackson, for example, writes:

The Willingham case was charged as a multiple child murder, and not an arson-murder to achieve capital status. I am convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged....

The Houston Chronicle's editorial similarly claims that the report "doesn't flatly say" that Willingham was innocent of the crime for which he died.

But these are the first words of the report: "Neither the fire that killed the three Willingham children nor the fire that killed Elizabeth Grace Belue and Gail Joe Allison were incendiary fires." Seems pretty flat to me: the fire wasn't deliberately set. And if the fire wasn't deliberately set, Willingham didn't murder his children.

One of the reasons that Cameron Todd Willingham received the harshest possible punishment was that he showed no remorse for his crime. I'm sure Jackson made that argument at the punishment phase. Maybe there's a lesson for him in there somewhere.